Monika Knitting Works vs Mukesh Chander Adya and Others

J.V. Gupta, J

This judgment will dispose of S.A.O. No. 47 and 55 of 1985, as the question involved is common in both the cases

The Plaintiff Respondent, Mukesh Chander Adya filed a suit for separate possession by partition. The suit was contested inter-alia on the ground that the property was not joint and that Defendant No. 6 was the exclusive owner of the suit property The trial Court framed two issues (Issue Nos. 1 and 2) alongwith others. Ultimately the trial Court dismissed the Plaintiff''s suit as it was found that the property in question was exclusively owned by Defendant No. 6, as has been mentioned in mortgage-deed Exhibit DC and that the Plaintiff has got no interest in the same. It was further found that as the Plaintiff is not owner of any portion of the property in question, he is not entitled to the possession thereof by partition and, therefore, he has no locus standi to file the suit. Dissatisfied with the same the Plaintiff filed an appeal in the Court of the Additional District Judge, Ludhiana There it was argued that proper issues have not been framed by the trial Court and, therefore, the whole trial was vitiated. These objections prevailed with the learned Additional District Judge and consequently he framed two additional issues, which are as follows:

(1) Whether the Plaintiff and Defendants from Joint Hindu Family ? OPP

(2) Whether the property in dispute is a Joint Hindu Family property ? OPP

After framing these two issues, he further found that the whole trial was vitiated and consequently the judgment, and decree of the trial Court was set aside and the case was remanded for deciding the mutter afresh after allowing the parties to lead evidence. Dissatisfied with the same the Defendants have filed this appeal in this Court.

Learned Counsel for the Appellant contended that there was absolutely no occasion for the lower appellate Court to frame the additional issues. The suit remained pending in the trial Court for two years and the parties knew about the whole controversy between them-selves. Not only this, issue Nos. 1 and 2, framed by the trial Court, included the issues now framed by the lower appellate Court. Thus, argued the learned Counsel, there was no reason for the lower appellate Court to frame additional issues and allow the Plaintiff to lead evidence. In any case, argued the learned Counsel, the decree of the trial Court cannot be set aside on that ground.

After hearing the learned Counsel for the parties I am of the considered view that the whole approach of the lower appellate Court is wrong and misconceived There was absolutely no occasion for framing the additional issues, because the same are covered under issue Nos. 1 and 2 framed by the trial Court. Under the said issues a firm finding has been given by the trial Court that the property in question was exclusively owned by Defendant No. 5 and that the Plaintiff has got no interest therein. This finding presupposes that the property was not a joint one as alleged by the Plaintiff. That being so the question of framing any additional issue in the circumstances did not arise. In this way the Plaintiff wanted to produce additional evidence indirectly which he could not be allowed In any case the decree of the trial Court could not be set aside on this ground. Consequently this appeal succeeds, the order framing additional issues and reminding the case to the trial Court is set aside and it is directed that the appeal be decided on merits in accordance with law. The parties have been directed to appear in the lower appellate Court on 30th November. 1985. No costs.